Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554


In the matter of )
)
Application by Ameritech Michigan ) CC Docket
For Authorization Under Section 271 of the ) No. 97-137
Communications Act To Provide In-Region )
InterLATA Service in the State of Michigan )

)

REPLY BRIEF IN SUPPORT OF MOTION OF AT&T CORP.

TO STRIKE PORTIONS OF AMERITECH'S REPLY COMMENTS

AND REPLY AFFIDAVITS


AT&T Corp. ("AT&T") respectfully submits this reply in support of its motion to strike portions of Ameritech's reply comments and reply affidavits.

INTRODUCTION AND SUMMARY OF ARGUMENT

In its motion, AT&T demonstrated that the Commission's rules, which follow directly from the unique scheme of accelerated and consultative review imposed by Section 271, require that the original BOC application include "all of the factual evidence on which the applicant would have the Commission rely."(1) AT&T further demonstrated that much of Ameritech's 2,200 page reply submission directly violated this rule by presenting new factual evidence that post-dated the date of Ameritech's application or that should have been submitted with the original application. To illustrate how permitting such a filing would not only violate the rules but distort the factual record and undermine the Commission's ability to assess a complete record that all parties had commented upon, AT&T offered one telling example -- Ameritech's repeated failure throughout its four new OSS affidavits to mention its mishandling of 23,000 AT&T change orders in late June.

In opposing AT&T's motion, Ameritech says nothing about the statutory scheme or the Commission's responsibilities thereunder. Instead, Ameritech argues that it could not possibly anticipate all of the commenters' arguments and that each of its affidavits was responsive to points made by commenters. These purported rationales simply miss the point of the motion, which is to strike those portions of the reply that introduce new evidence intended to show that Ameritech has now fixed its noncompliance problems.

Ameritech also fails to discuss or distinguish the Commission's prior enforcement of its rules when it barred Ameritech from submitting newly approved interconnection agreements in response to arguments that an interconnection agreement it had submitted was defective. See Feb. 7 Order ¶ 21; AT&T Motion to Strike at 1-2, 10. Just as Ameritech was not permitted to rely on an interconnection agreement that would have been approved by the state 45 days after Ameritech filed its application, so must it be barred from relying on data based on post-application events. As it did in its February 7 Order, the Commission should again hold that a BOC with new information must choose between withdrawing its application and restarting the application process or else waiting until the conclusion of the 90 day process and, if necessary, re-applying after that. What a BOC may not do is attempt to come into compliance over the course of the 90-day review period via a self-generated rolling application process.

At bottom, Ameritech's only real response to the motion is to point to the supposed "substantial opportunities to submit ex parte materials" (Opp. at 11) that commenters can use to respond to what Ameritech effectively concedes was a factually misleading reply submission. Not only is the ex parte process not designed for such a purpose, but the Commission would be ill-served to attempt to use it that way. Transforming the applicant's initial factual record into an endlessly moving target is fundamentally incompatible with the unique Section 271 application process that Congress created, and should be rejected.

ARGUMENT

Ameritech offers two new rationales to justify its filing and one procedural objection to AT&T's motion. None has merit.

1. Ameritech's first purported rationale is that Ameritech "was not obligated in its opening submission to anticipate and address every conceivable point that any commenter might raise." Ameritech Opp. at 3; see id. at 5 ("Ameritech would have had to be marvelously -- indeed, perfectly -- clairvoyant to foresee all such comments and address them in advance"). This is a straw man. Of course the Commission's rules do not require Ameritech to anticipate every argument in its opening comments.(2) Where commenting parties allege defects in Ameritech's assertions of compliance, Ameritech is perfectly free to reply by identifying ways in which those parties have misapprehended the existing record or the law.

What Ameritech may not do, however, is attempt to fix these defects -- or remedy a premature application -- by introducing new evidence. Indeed, at one point even Ameritech is forced to acknowledge that it is not permitted to use its reply comments "to cure any missing elements" in its opening submission. Id. at 7. Yet that is exactly what Ameritech has done.

For example, the comments of AT&T, the Department of Justice (DOJ), the Michigan Public Service Commission (MPSC), and others examined the evidence that Ameritech put forward and showed that Ameritech was not providing nondiscriminatory access to its operations support systems (OSS). Rather than challenge the commenters' assessment of the record directly, Ameritech chose in its reply to submit a new record on OSS that purports to show how Ameritech, through new system changes and promises of future conduct, has fixed or will fix these problems.

Thus, the fundamental premise of the new Gates/Thomas affidavit is not that commenters mis-analyzed Mr. Meixner's initial affidavit (which addressed data through March 31, 1997), but that those criticisms are no longer well-founded in light of new evidence that these witnesses collected in May, June, and July. For example, in response to heavy criticism of Ameritech's discriminatory treatment of CLECs with respect to providing timely firm order confirmations (855s) and order completion notices (865s), the Gates/Thomas affidavit points to Ameritech's performance through the week of June 23, 1997, data no CLEC could possibly have commented upon. Gates/Thomas Aff. ¶¶ 55-56, 63, 82, Schs. 9-10; see also Appendix A hereto (noting other examples).

Mr. Mickens' reply affidavit also extensively relies upon new evidence to fill the numerous gaps in his opening affidavit. He responded to the criticism of the MPSC, DOJ, and AT&T not by defending the 12 patently inadequate performance reports he originally submitted, but by replacing them with 27 new performance reports featuring new data, new CLECs, and even some new measures. See AT&T Motion to Strike at 7-8. Similarly, Mr. Rogers' reply affidavit relies on ordering experience "just within the last two weeks" to respond to AT&T's criticisms of Ameritech's poor performance through May 21. Rogers Reply Aff. ¶ 9. Indeed, Ameritech's reply affidavits on OSS are shot through with this kind of improper reply argument. See Appendix A hereto (identifying each example).

The same is true of Ameritech's treatment of unbundled local switching. AT&T, DOJ, and other commenters demonstrated that Ameritech's claim that it was "operationally ready" (Ameritech Brief at 46) to provide CLECs with unbundled local switching was false. Rather than defend the record on which its original claim was based, Ameritech sought in reply to introduce new evidence and new proposals, largely from the time period following the filing of comments, and to argue on this basis that it is now "operationally capable of providing the 'platform' upon request." Ameritech Reply Br. 23; see e.g., Kocher Reply Br. ¶ 70-84, 88-101. Ameritech thus seeks, once again, to use post-application events and data to fill critical gaps in a concededly premature application -- an application that could not and did not show that Ameritech had complied with the competitive checklist at the time it was filed.

2. Second, Ameritech seeks to justify all 2,200 pages of its reply submission as "properly responsive to comments previously filed in this proceeding." Ameritech Opp. at 5; see id. at 5-12 & App. A. In Ameritech's view, anything is fair game for inclusion in a reply so long as it is "aimed at refuting arguments or factual allegations raised in the opposing comments." Id. at 6.

Again, Ameritech's argument begs the question. No one is suggesting that Ameritech's arguments were not aimed at refuting arguments or factual allegations raised in the opposing comments. AT&T's point is simply that Ameritech chose to respond not by defending the ground it staked out in its initial application, but by moving to new territory. This is true for all of the material that AT&T has sought to strike. See Appendix A.

Nothing in the Commission's rules supports Ameritech's tactic. Ignoring the statute and the record of prior Commission action on this point (see AT&T Motion to Strike at 2, 9-10, 15-16), Ameritech cites only the Commission's statement that "'[r]eply comments may not raise new arguments that are not directly responsive to arguments that other participants have raised.'" Ameritech Opp. at 7. This statement cannot help Ameritech.(3) It plainly serves to confirm that the Commission intends to enforce the traditional rule against new argument in the reply phase. See AT&T Motion to Strike at 15-16 & n.9. Yet Ameritech twists the statement -- in part by disingenuously substituting the word "matters" for "arguments" -- to conclude from it that "the Commission does authorize discussion of new matters on reply that is directly responsive to comments of other participants." Ameritech Opp. at 7. Such obvious wordplay is hardly compelling grounds for the chaos that Ameritech seeks to introduce into the Section 271 application process.

Ameritech's purported policy justifications for ignoring the Commission's requirement of a factually complete initial application are equally meritless. Ameritech claims that it must be permitted to submit new evidence because "movants themselves submitted material in their own comments concerning events subsequent to Ameritech's May 21 filing." Ameritech Opp. at 9; see id. at 2 (movants "seek to have their characterizations of these [post-May 21] events remain in the record while the Commission strikes Ameritech's rejoinders").

These purported concerns are entirely unfounded. Ameritech simply ignores AT&T's clear statements that "to the limited extent that any comments contain" post-May 21 information, "a BOC could reply to it with a focused, fact-specific response that also did not go beyond the time period for comments (i.e., in this case, June 10)" and "the scope and timing of any BOC response" to any commenter's raising of an exceptional intervening event at any other time "could be dealt with on a case-by-case basis." AT&T Motion to Strike at 13-14. There is thus no intent or need to deprive Ameritech the ability to respond appropriately to any new post-application facts that commenters have raised.

What Ameritech did, however, went far beyond the bounds of any legitimate reply. In this regard, Ameritech's assertion (Opp. at 9) that AT&T relied significantly in its comments on events and data that post-date May 21 is simply false. Virtually all of AT&T's data and discussion regarding OSS concerned the period through the week of May 21. Indeed, even the paragraphs from AT&T affidavits that Ameritech cites (Opp. at 9), with few exceptions, do not deal in any way with any data or events that post-date May 21. See Bryant Aff. ¶¶ 97-101, 106-109, 111-112; Connolly Aff. ¶ 96-102, 134, 229. The principal point raised by AT&T that concerned events between May 21 and June 10 was Ameritech's belated effort to begin a platform trial -- but even there, AT&T's focus was on how little Ameritech had done or agreed to do. See Bryant Aff. ¶¶ 50-58; Falcone/Gerson Aff. ¶¶ 22-30. Rather than discuss or dispute what happened prior to June 10, Ameritech's reply improperly addressed Ameritech's post-June 10 activities -- a time period AT&T's comments could not possibly address. See, e.g., Ameritech Reply Br. 23; Kocher Reply Aff. ¶¶ 77-82; 88-95; 100-101; 103; Attachment 29.

Ultimately, even Ameritech recognizes that its introduction of post-application data and events unfairly prejudices commenting parties; it is for this reason that Ameritech points to the "substantial opportunities to submit ex parte materials" that the Commission provides. Ameritech Opp. at 11. But Ameritech conveniently overlooks that the Commission's rules limit ex parte submissions to 20 pages -- hardly enough to respond to the 2,200 pages that Ameritech appended to its reply comments. More fundamentally, Ameritech offers no response to the critical point that the Commission's ability to meet its statutory obligations will be seriously compromised if the factual record is not closed at some point, and that the only sensible place to draw the line is where the Commission originally drew it -- at the time of the application. See AT&T Motion to Strike at 12-13.

3. Ameritech's final objection to AT&T's motion to strike is that AT&T supposedly failed to "delineate" the reasons for its motion with the "requisite specificity." Ameritech Opp. at 13. By way of illustration, Ameritech complains only that AT&T failed adequately to explain why it was impermissible for Ameritech to introduce data from June, 1997, to demonstrate the status of local competition. Id. at 13-14.

This procedural cavil is makeweight. The first sentence of AT&T's motion clearly sets forth the standard AT&T applied for each of the paragraphs it has sought to strike. The motion explains in detail the basis in the statute and the Commission's rules and prior decisions for enforcing the standard here, and discusses its application with respect to each affected affidavit. With respect to the status of local competition, AT&T finds Ameritech's purported confusion particularly difficult to believe. The motion to strike leaves no doubt that, in AT&T's view, either local competition is sufficiently evolved at the time of the BOC's application to justify entry, or it is not. The Commission should not countenance an application process in which BOCs try to time their applications so that the record they ultimately rely upon is complete only at day 45 or later rather than at day 1.

CONCLUSION

For the reasons stated above and in AT&T's motion to strike, the Commission should strike Ameritech's submission of new factual information and any reliance thereon in Ameritech's reply comments.



Respectfully submitted,


/S/ MARK C. ROSENBLUM

Mark C. Rosenblum
Leonard J. Cali
Roy E. Hoffinger
James W. Grudus

AT&T Corp.
295 North Maple Avenue
(312) 853-7000
Basking Ridge, New Jersey 07920
(908) 221-3539


/S/ DAVID W. CARPENTER

David W. Carpenter
Mark E. Haddad

Sidley & Austin
One First National Plaza
Chicago, Illinois 60603

Counsel for AT&T Corp.
August 6, 1997


APPENDIX A
Gates/Thomas
¶¶ 16, 20 These paragraphs discuss a second review conducted by the Andersen team "[d]uring May, June and July 1997" and the conclusions drawn from that review. This second Andersen review, and the data and conclusions set forth in the Gates/Thomas Affidavit, were never disclosed to any of the commenting parties prior to Ameritech's filing of its reply affidavits. The Andersen affidavit filed by Robert Meixner with Ameritech's May 21 petition only addressed data through March 31.
¶¶ 22-23, Sch. 1-2 These paragraphs discuss pre-ordering interface testing and use as of June 18, rather than addressing the testing and use at the time of filing.
¶¶ 24-25, Schs. 3-4 These paragraphs present data from May and June on EDI ordering, with heavy emphasis on June orders. The affidavit cites this new data as the basis for concluding that the EDI interface is operational, and contains almost no discussion of the earlier data which formed the basis for the DOJ and carrier comments.
¶¶ 27, 29, 31, 32, Sch. 5 The discussion of manual processing is based almost entirely on data from May and June. In contrast to the prior admission of Andersen that it did not participate in Ameritech's conference calls with CLECs (Connolly Attachment 11, pp. 1780-84), paragraph 32 claims that the second Andersen team does participate in the calls.
¶¶ 33, 35, 37, 39, Sch. 6 These paragraphs present May and June data on the reasons for manual intervention and discuss 15 "OSS interface modifications" that Ameritech supposedly implemented "in recent months," but do not describe or provide any detail on these purported modifications. These modifications also are not discussed in the Rogers May 21 affidavit and Ameritech has never identified them to AT&T. Paragraph 35 also discusses for the first time a "tracking database" for Ameritech's "investigation and resolution of 1PE items . . . " that supposedly was reviewed by Andersen. Paragraph 37 discusses "additional [unspecified] software upgrades" that Ameritech "is currently in the process of developing . . . with a scheduled implementation date of September 1997 . . . ."
¶ 45 This paragraph relies on new May and June data to counter the comments of the DOJ and AT&T that the April data in Ameritech's original submission showed an unacceptably high reject rate.
¶ 46 See ¶ 45. Ameritech also relies on its purported increase in manual resources in June as a reason for a decrease in reject rates.
¶¶ 49, 51, Sch. 7 These paragraphs discuss order rejections during the weeks of June 9 and June 16. These rejections were not raised by any commenter, nor was this data contained in Mr. Rogers' May 21 Affidavit.
Sch. 8 Schedule 8 consists of data jointly submitted by AT&T and Ameritech to the DOJ on June 18. The DOJ noted that it had not had a full opportunity to evaluate this data and it therefore did not include it in its evaluation. See DOJ Evaluation in CC Docket 97-137, p. A-13 n.19.
¶¶ 54-56, 63, 82, Schs. 9-10 These paragraphs respond to Ameritech's April order processing problems by citing May and June data. Ameritech also relies on the Schedule 8 data that was not submitted to the DOJ until June 18. Paragraph 55 discusses 855 performance through the week of June 23, and paragraph 63 does the same with respect to 865 notices of order completion.
¶¶ 67-68, Sch. 11 These paragraphs rely entirely on new data from May and June to support the conclusions regarding the repair and maintenance OSS.
¶ 69 This paragraph relies on May and June volumes, which are irrelevant to AT&T's discussion of customer double-billing as of April 16, the cut-off date of Ameritech's original report.
¶¶ 74-75, Sch. 12 These paragraphs discuss "on a forward-looking basis" an Ameritech 3E team and review of the 3E team's "3E Score Card" for May and June 1997, which "documents specific performance measurements . . . " (¶ 74). None of this 3E data or the "3E Score Card" was contained in Ameritech's May 21 filing or provided to AT&T prior to the filing of Ameritech's reply affidavits.
¶¶ 80-81, Sch. 13 These paragraphs purport to set forth an "updated" analysis of manual capacity.
Harris/Teece Affidavit

¶¶ 3-5; 16

Page 5, Table II.1

Page 6, Tables II.2

Page 7, Figure 1

Page 8, Figure 2





These paragraphs rely on June local competition data in responding to comments that Ameritech's initial application failed to show that the local services market is subject to effective competition.


Kocher Affidavit
¶¶ 70-84;

Attachment 23

Contains new information on Ameritech's plans to record and bill access charges in a "common transport" environment; extensively discusses June 20, 1997 AT&T correspondence regarding AT&T and Ameritech's efforts to determine whether Ameritech can develop technical capability to provide AT&T with the platform.
¶¶ 88-95;

Attachments 24-25

Discusses July 1 results of Phase I Network Platform Trial.
¶¶ 96-101;

Attachments 26-28

Describes development of Phase II trial, including events as late as July 1, 1997.
¶¶ 102-112;

Att. 29

Describes "delays in trial," including events through July 1, 1997. Kocher expressly states that his description of the delays is necessary in "anticipat[ion]" of AT&T reply materials complaining about Ameritech's conduct during the trial. Kocher Reply Aff. ¶ 102. AT&T, however, did not file such reply materials.


Mayer/Mickens/Rogers
¶ 8 This paragraph refers to "supplemental evidence regarding preordering testing," citing new data contained in the Gates/Thomas Reply Aff. ¶¶ 22-23 and Schedule 1.
¶ 9 n. 2 This paragraph cites the Gates/Thomas Affidavit regarding May/June EDI data, and does not respond to the data discussed by the DOJ.
¶ 16 This paragraph cites the Gates/Thomas Reply Affidavit ¶¶ 70-75 & Sch. 12, which includes extensive references to May/June data. This is not relevant to the fact that Ameritech's double-billing problems had not been resolved at the time of its May 21 petition.
¶ 18 This paragraph "add[s]" a discussion of the "most recent data" and cites the Gates/Thomas and Mickens Reply Affidavits. This additional discussion focuses on new data that was not addressed by the DOJ.
¶ 20 This paragraph goes beyond the DOJ comments and presents a one-sided discussion of Ameritech's June 23 meeting with CLECs.
¶ 23 In addition to responding to the DOJ, this paragraph discusses new data regarding "additional testing and use of GUI" in the Gates/Thomas Reply Aff., ¶¶ 64-68 & Sch. 11.
¶ 24 Ameritech relies on post-filing data, which it claims show that the billing problems that existed at the time of filing "ha[ve] been eradicated" (citing new data from Gates/Thomas and Mickens Reply Affidavits).
¶ 27 Ameritech cites the Gates/Thomas Reply Affidavit paragraphs regarding data that Ameritech submitted to the DOJ on June 18, which the DOJ noted it had not had a full opportunity to evaluate and therefore did not include in its evaluation. See DOJ Evaluation in CC Docket 97-137, p. A-13 n.19.
¶ 28-30 Ameritech responds to the DOJ's criticisms of its performance measurements by stating that "the Company will incorporate such explanations into its reports in the coming weeks and months" (¶ 28, emphasis added) and "clarify" its definitions with respect to due dates (¶ 29), as well as provide "a special analysis upon request" of pending past due orders (¶ 30).
¶ 45, 48, 49 Ameritech responds to the DOJ's criticisms by promising to provide "a special analysis" in the future.
¶ 51 Ameritech's discussion centers on its "presen[t]" activities (as of July 7) and its plans to provide billing accuracy reports "in the third quarter of 1997."
¶ 61, Schs. 3, 4, 5 Ameritech's response describes recent actions taken by Ameritech in June, orders received by Ameritech in June, and its plans to increase staff "by the end of the [1997] year."
¶ 63 Ameritech accuses the DOJ of relying on "incomplete data" and then cites May data that it either chose not to include in its petition or that post-dated its petition.
¶ 64 Conceding that 75.8% of bills were late in May, Ameritech argues that its performance improved in June.
¶¶ 66, 75, 76, 81-83, 89, 91, 93, 94, 101, 103-106, 112, Attachments 6-7 Contains and discusses new data on EOI blocking.


Mickens Affidavit
¶ 26 This paragraph relies upon completely new measurements and newly reported data regarding OS and DA speed of answer performance, noting that these are "recently generated reports for directory assistance and operator services."
¶¶ 27-28, 39 Contains new promises of future conduct.
¶ 42 Relies on new measurements and new data for OS/DA speed of answer. See ¶ 26 supra.
¶¶ 43, 45 Contains new promises of future conduct.
¶¶ 76-77, 80-81 Relies on new May 1997 data.
¶ 84 Relies on new data for May and June 1997.
¶ 85 Contains new May 1997 data.
Attached Schedule 7 Contains new May and June 1997 AEBS billing performance data.
Attached Schedules 8 to 34 Contains new May 1997 data.
Attached Schedule 35 Contains completely new measurements and new data for speed of answer for operator services and directory assistance. See ¶ 26 supra.


Rogers
¶¶ 9, 26, 28-29 These paragraphs primarily assert that the June order processing data demonstrates the operational readiness of Ameritech's OSS. They contain virtually no discussion of the earlier data upon which Ameritech's application was based and to which the commenters responded.
¶ 25, Sch. 2 This discussion represents a one-sided portrayal by Ameritech of a June 23, 1997 meeting and speculative projected future dates for the implementation of EDI Issue 7.0.
¶ 34 This paragraph responds to concerns about pre-ordering interface capacity by ignoring their basis in the Andersen Consulting work papers (see Connolly Aff., ¶ 20 & Attachment 43) describing the "fine-tuning" of its server, and promising to install a back-up server in July 1997.
¶ 36, Sch. 3 This material attempts to remedy defects in CLEC access to pre-ordering information with future promises (an on-line street address guide to be made available in October 1997, and to be described in the next release of the ESO Guide at the end of July). (Rogers Aff., ¶ 36).
¶¶ 38-42 These paragraphs rely almost exclusively on order processing data from June, including heavy emphasis on orders submitted between June 25-27 (¶ 39), "860" transactions through June 27 (¶ 40), and CSR data through June 30 (¶ 42). Ameritech also promises for the first time that it will "implement" a "change" to process new service orders electronically "later this year" (¶ 41).
¶ 58 Ameritech responds to an identified problem with a conclusory description of a supposed enhancement that resolves it.
¶ 62, Sch. 4 Ameritech's response relies on data through June 16, nearly one month after Ameritech filed its application.
¶ 67 Based on testing that did not begin until June 13, Ameritech offers its "point of view" that "MCI is prepared to go to release 3.2 on June 30, 1997." (¶ 67).
¶ 68 Ameritech's response relies entirely on material from the Gates/Thomas Reply Affidavit from May and June.
¶¶ 75, 78, Sch. 5 Although the bulk of these allegations relate to MCI, Ameritech's response relies on June data regarding the late 865 notices (¶ 75 & Schedule 5) and a June 20 response regarding problems in the 870 jeopardy notification transaction. (¶ 78).
¶¶ 79, 81 Ameritech refers to data regarding the supposed installation and use of the GUI well after the date of Ameritech's filing. With respect to performance, Ameritech again relies on May and June data.
¶¶ 86, 89-91 Ameritech states that "[s]ince May 16, 1997, 421 bills have been held up to prevent double-billing," and that Ameritech is currently in the process of issuing "refunds" to customers. (¶¶ 86, 88). These events and Ameritech's "summary to date" of double-billing (¶ 89) post-date the May 21 filing.
¶ 96 Ameritech's capacity response again refers to the July "fine-tuning" of the pre-ordering server and installation of a back-up server, June order processing, and the "recent expansion" of manual capacity.
¶ 98 Ameritech's response relies almost exclusively on "more recent data" to address the comments of various parties.






1. Order, In the Matter of Application by Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, as amended, to Provide In-Region, InterLATA Services in Michigan CC Docket No. 97-1, FCC 97-40 at 14 (¶ 22) (rel. Feb. 7, 1997) ("Feb. 7 Order"), quoting Public Notice Procedures For Bell Operating Company Applications Under New Section 271 Of The Communications Act, FCC 96-469 at 2 (rel. Dec. 6, 1996) ("Public Notice"), (emphasis supplied by Commission in Feb. 7 Order).

2. Although Ameritech's "clairvoyance" argument is irrelevant to the matters that are the subject of AT&T's motion, that argument is in any case overstated. As a result of proceedings conducted by the state prior to the filing of a Section 271 application, and the meetings that the Commission requires applicants to conduct with interested parties, all or nearly all of the arguments raised by such parties will be known to the petitioning BOC at the time it files its application. Thus, it is entirely reasonable to expect a BOC to address all factual and legal arguments of which it had notice in its initial application, as the Commission's procedures require. Otherwise, a BOC could engage in blatant "sandbagging" by making conclusory assertions of compliance, waiting until its reply to submit information that it could and should have included with its initial application, thereby denying interested parties an opportunity to comment except within the significant constraints of the ex parte process.

3. The fact that evidence or an argument submitted in a reply is "aimed at refuting arguments or allegations raised in comments of other parties" cannot be dispositive for purposes of a motion to strike material in a Section 271 reply. If that were the standard, nothing would prevent a petitioning BOC from withholding information from its initial application and using it in a reply. Thus, the inquiry must also consider whether, in light of the stringent deadlines associated with Section 271 applications, the material should be permitted on reply without restarting the 90 day clock.